• by Wendy Davis  @wendyndavis, June 24, 2015

Yahoo has no grounds to immediately appeal a ruling that allows consumers to proceed with a class-action suit over the company's email scanning practices, a group of consumers argues in new court papers.

“Yahoo contends that ... review of the district court’s order is necessary but has not shown why this this is one of the 'rare' cases in which review is appropriate,” the consumers argue in papers filed this week with the 9th Circuit Court of Appeals.

The consumers' filing comes in response to Yahoo's bid to convince the 9th Circuit to hear an appeal of a recent decision issued by U.S. District Court Judge Lucy Koh. She ruled in late May that a group of Web users -- Cody Baker, Brian Pincus, Halima Nobles, and Rebecca Abrams -- could bring a class-action challenging Yahoo's practice of scanning email messages in order to surround them with ads. Baker and the others say that Yahoo violated the federal wiretap law and a California privacy law by allegedly intercepting messages without the consent of both the sender and recipient.

Yahoo argues that the consumers shouldn't be able to proceed as a class-action, because it will argue that they consented to the scans. “Determining who has not consented (and thus is part of the class) requires an individualized, fact-specific inquiry,” the company says in papers filed earlier this month with the 9th Circuit.

Yahoo's terms of service provide that the company analyzes email in order to display ads, but the people who are suing didn't have Yahoo email accounts themselves, and say that they never explicitly agreed to the company's terms of service.

Baker and the others counter that they're entitled to proceed as a class, arguing that some key questions don't require consumer-by-consumer decisions.

Koh's decision allowing the consumers to proceed as a class was something of a surprise, given that last year she refused to authorize Web users to proceed as a class in a privacy lawsuit involving Gmail. Web users in that matter argued that Google violated privacy laws by scanning messages in order to surround them with ads.

Koh ruled in the Gmail dispute that the consumers could proceed with their allegations, but only on behalf of themselves. The users settled with Google soon after that decision.